Select Committee on European Scrutiny Thirtieth Report


20 Organised crime

(a)

(26319)

6582/05

COM(05) 6

(b)

(27436)

8496/06


Draft Council Framework Decision on the fight against organised crime


Amended draft Council Framework Decision on the fight against organised crime

Legal baseArticles 29, 31(1)(e) and 34(2)(b) EU; consultation; unanimity
Deposited in Parliament(b) 21 April 2006
DepartmentHome Office
Basis of consideration(b) EM of 16 May 2006
Previous Committee Report(a) HC 34-iv (2005-06), para 9 (20 July 2005)

(b) None

To be discussed in Council1 - 2 June 2006
Committee's assessmentLegally and politically important
Committee's decision(Both) Cleared

Background

20.1 Organised crime has long been the subject of co-operation at EU and international level. In 1998 the Council adopted a Joint Action on participation in a criminal organisation (1998/733/JHA),[61] and in 2000 the United Nations adopted a Convention against Transnational Organised Crime (UNTOC).

20.2 Under the Joint Action, Member States were given the right to make criminal either an active participation in an organisation's criminal activities or the making of an agreement that an activity should be pursued. Similarly, Article 5(1)(a) of UNTOC requires States which are a party to the Convention to treat as criminal either (i) an agreement to commit a serious crime, or (ii) conduct by a person who, with knowledge of either the aim and general criminal activity of an organised criminal group or its intention to commit the relevant crimes, takes an active part in the group's criminal activities or in its other activities in the knowledge that his participation will contribute to achievement of the group's criminal aims.

Previous scrutiny of document (a)

20.3 Document (a) is a proposal for a Framework Decision to replace the provisions of the 1998 Joint Action. It makes provision for specific criminal offences of directing, and of active participation in, a criminal organisation and prescribes new offences relating to criminal organisations.

20.4 When the previous Committee considered the proposal in April 2005, it noted that Article 2 of the draft Framework Decision would require active participation to be made criminal, with no provision for an alternative means of satisfying the requirements of the Framework Decision by referring to an agreement to commit a serious crime. Our predecessors saw no useful purpose in this departure from the UN Convention. The Framework Decision did not appear to allow for the conduct to be dealt with by the existing law on inchoate crimes such as conspiracy, and thus did not appear to respect the differences between the traditions and legal systems of the Member States.[62]

20.5 The previous Committee also believed that the sentencing provisions of Article 3(2) of document (a) might interfere with judicial discretion since they appeared to require that offences committed in the context of criminal organisations incurred longer periods of imprisonment.

20.6 The then Parliamentary Under-Secretary of State at the Home Office (Paul Goggins) wrote to us in June 2005 to say that the Government preferred the approach reflected in Article 5 of UNTOC and was still considering, therefore, whether it could accept the proposal in Article 2 of document (a). As to judicial discretion in sentencing, the Government shared the previous Committee's concern about the drafting of Article 3(2) and would seek appropriate amendments.

20.7 When we considered the Minister's comments, we could see no benefit in preventing common law jurisdictions from relying on their existing law on conspiracy and incitement.[63] We supported the Government's endeavours to secure more appropriate wording of the provisions relating to sentencing.

Document (b)

20.8 Document (b) is an amended draft of the Framework Decision. It was considered by the Council on 28 April. Subject to the Parliamentary reserves of the UK and several other Member States, there was a consensus in favour of the amended draft.

20.9 Two aspects of the amended draft are particularly notable:

  • the new Article 2(b) would enable common law States to deal with involvement in a criminal organisation under the law of conspiracy and reflects the approach adopted in UNTOC; and
  • the revised wording of Article 3 would not restrict judicial discretion in sentencing in the way that was objectionable in the previous draft of the provision.

The Government's view

20.10 The Parliamentary Under-Secretary of State at the Home Office (Mr Vernon Coaker) tells us that the Government believes that Articles 1, 2 and 3 of the amended draft of the Framework Decision now provide a proportionate response to the need to ensure that Member States' laws are adequate to provide an effective response to organised crime. The Government is content with the other provisions of document (b).

Conclusion

20.11 We welcome the amendments to Articles 2 and 3 that have been incorporated in the amended draft of the Framework Decision. They remedy what we and our predecessors regarded as the defects in the previous draft. There are no other issues that we need raise with the Minister. We are content, therefore, to clear document (b) from scrutiny. We also clear document (a) because it has been superseded by the revised text.





61   OJ No. L351 of 29.12.1998, p.1. Back

62   See HC 38-xv (2004-05), para 7 (6 April 2005). Back

63   See headnote. Back


 
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